Sunday, August 26, 2007

Since many blogs and online articles have already posted the different grounds for District Judge Earnest Lau's judgement in the Odex vs Pacnet case, I'll just focus more on the more interesting areas and the potential future impact it might have. You can read a short summary of the Judge's decision in the Today online article. As of today, there does not appear to be a publicly available copy of the 14 page Judgement and it certainly still isn't up on lawnet yet. NMP Siew Kum Hong's blog contains thewritten oral judgement of District Judge Earnest Lau's decision, you may find it here. Based on this, these points are the more interesting ones.

Grounds of the decision & other interesting points:

Odex is only the sub-licensee and not the exclusive licensee. It only appears to be the exclusive licensee for one title, that of mobile suit gundam seed. The Copyright Act only allows either the Copyright owner or the exclusive licensee the right to commence a civil action against the copyright infringement.

Odex was not directly authorised by the Japanese animation companies to go after the illegal downloaders. The party they authorized was AVPAS.

Standard for releasing subscribers' information was pegged to that for a civil application for an Anton Piller order which requires stringent criteria to be fulfilled and a strong prima facie case against the defendants. In this case, the Judge felt that Odex could not prove that it had 'an extremely strong prima facie case against the wrongdoers'. This standard is thus pegged very high.

Evidence filed by Odex was found lacking. There was no concrete proof that Odex had hired BayTSP and there was no evidence from BayTSP in support of Odex's claims. Taking information off the website and submitting it is insufficient in a court of law.

What this means & the potential impact(points addressed in the order they were raised):

The previous legal analysis in Odexed? 8 Things you should Know was based on the premise that Odex was the exclusive licensee for all of its titles which it licensed and that analysis would remain correct if that was indeed the case. However if the finding of fact by District Judge Earnest Lau is not overturned on appeal (as findings of facts seldom are), it would appear that Odex is only a sub-licensee and on the face value of the Copyright Act would not have the right to commence a civil action for copyright infringement.

Well this does clarify things further. We get a glimpse of the three tiered structure, Jap animation companies authorize AVPAS, AVPAS authorizes Odex (with or without the active knowledge of the Jap Companies), Odex commences the operation. This does appear to reinforce the notion that Odex was in fact not directly authorized by the copyright owners, the jap companies themselves. Though it would appear from the tenor of the Judge's decision that even if Odex was directly authorized, that would be insufficient as he is of the opinion that only the Copyright owner and exclusive licensee can commence a civil action.

This is certainly an important substantive legal point that will need to be determined on appeal by the High Court. First, is the standard for compelling a company to release customers' private information pursuant to alleged copyright infringement pegged to the very high standard required for a civil Anton Piller order? Second, if not what should the standard be and the necessary factors involved in determining whether such a standard is satisfied. As expected, Odex will be appealing against the Pacnet decision and the outcome of the appeal in the High Court will be eagerly awaited.

It remains to be seen if the appeal will end at the High Court level whichever way it goes, though if the appeal fails at the High Court for Odex, they will almost certainly need to appeal to the Court of Appeal. The decision of which would be binding and would set a precedent for future cases. After all, Odex has everything to lose if it fails to appeal. On a side note, it is highly unlikely that Odex will continue sending out the settlement letters for now, at least until their appeal succeeds because their legitimacy and authority to commence any civil action to protect against copyright infringement have been severely undermined by the grounds given in the Pacnet judgement.

This is pretty much an evidentiary issue which could be easily corrected if Odex has indeed really hired BayTSP. Though it does portray Odex as not having all the requisite evidence at hand. This issue is a lot less important than their lack of authority and failing to satisfy the high standard required that were raised earlier. Remedying an evidentiary issue would be of no use if there is a fundamental error with regards to a substantive point of law (that of their authority, lack of locus standi, etc.)

The Singnet issue is of course a sticking point. I believe someone made a comment in the previous post that Pacnet shouldn't have contested the Odex court application since the downloaders were infringing copyrights. Let me clarify something, Privacy is certainly NOT a defence to copyright infringement or any kind of offence for that matter. However, it would be equally wrong to state that because Pacnet contested the order out of concern for their customers' privacy this means that they support copyright infringement.

That is an erroneous logical deduction. Companies have an obligation to protect their customer's confidential information and privacy and should actively do so. The aggrieved party/plaintiff alleging wrongdoing on the part of the Company's customers is entitled to go to court and compel the company to release private information if it can show on the balance of probabilities that it has a good case and has the necessary evidence to back up its claims. A court order will then be obtained.

Giving in or not even attempting to contest the plaintiff's application for a court order to compel the company to reveal customer's private information is a dereliction of that obligation and shows that the concept of 'Valuing our Customers' Privacy' is unimportant and only given lip service. By failing to discharge its obligation to its customers to protect their privacy within reasonable limits and be seen to do so, a company loses credibility with its customers who will be understandably unhappy.

Your legal insights are very much appreciated. One question though, in the judgement, para 42 states that Go actually used the Letters of Undertaking as evidence that his data was reliable (people admitting to downloading). Is this actually allowable?

*amused* I actually was a bit right; Odex does not have the right licenses. I always thought it a bit strange that none of the online discussions ever challenged the presumption that Odex was the right party to sue. I didn't know about the fact that Copyrights can only be enforced by the copyright owner and exclusive licensee, though.

Of course, that's not your area of expertise, but no one else seemed to question this either, and I would have thought there were many more business people than lawyers in Singapore (seeing as how they limit the supply of lawyers).

@ galen: Yep, it certainly appears that your observation that Odex was not an exclusive licensee was correct. Based on the Copyright Act, it would certainly appear that only the Copyright owner or exclusive licensee is able to commence a civil action for copyright infringement.

@ anonymous: Yes, it's certainly correct that the anton piller test was not adopted wholesale, after all the two are not identical. What District Judge Earnest Lau did was to peg the standard of proof required for disclosure of subscribers' identities by Pacnet which he deemed to owe its customers a regulatory and contractual duty to that of the anton piller test.

Which he intentionally and specifically adopted. And this issue of the standard of care required is an issue of law that you can be absolutely certain will be raised on appeal. Please look at paragraphs 30 and 31 of District Judge Earnest Lau's written oral judgement.

Actually the duty was not "deemed" the basis is found in the PACNET witness statement I am told.

The judge did not pull this out of thin air.

Also this case is not about copyright law but about 3rd party discovery.

The ODEX case merely provided basis to mount a TPD appln. Depending on the HC judge that catches this case it may simply be decided on the basis that the evidence did not pass muster leaving "level of proof" issues for anor day. (I hope not though) The manner in which the evidence is presented falls short of the Evidence Act (in respect of expert opinion and who is entitled to give it). So may not even need to decide quality of evidence if the pple giving it on behalf of ODEX cannot even do so. Its not hard to get a TPD its just that ODEX did not manage to do it. Commentary to the contrary (i.e. that now Copyright holders will have a hard time) may not have seen taken into account the evidence presented by ODEX but assumed it passed muster. If I may respectfully say, your blog has one of the better grasps of the issues, though lack of info has affected some parts.

First things first, all my commentaries based on the Odex saga and the corresponding cases are based on my own opinion and views on the matter after a little research, they are by no means the authoritative, final say on this subject matter. Everyone is entitled to their opinions be it justified or not.

Second, I don't recall using the word 'deemed' in this post but even if I did, any word to that effect shouldn't be taken out of it's context. District Judge Earnest Lau's judgement was well written and reasoned, the conclusions he came to were certainly based on sound grounds and clearly explained. I certainly was never of the opinion that he made any rulings on a whim or fancy or pulled stuff 'out of thin air.'

Third, I assume you mean Third Party Discovery? Correct me, if I'm wrong. That's correct in that the case is not entirely about Copyright Law or copyright infringement, though the procedures and correct party to bring an action are certainly related to the Copyright Act. You do seem to have some knowledge about this area of TPD, it would be nice if you could write up on it and I'll link back to you.

Fourth, I'm totally aware that I do not have all the relevant or required information and naturally like I reiterated earlier my analysis is not authoritative. I just work with what I have la and the result and shortcomings are just my substantiated viewpoints.

Lastly, no sadly, I'm not that well connected, my friends are like me, PLC students, pupils who have not been called to the Bar yet. So the information I get is that generally available to the public, the news, forums, etc. You do appear to have some insider information? Perhaps It'll be nice if you could share it with us.

Oh and with regards to the Singnet bit, again my personal opinion but whatever Starhub did or didn't do does not detract from the fact that Singnet didn't even bother to contest the application and simply consented to it. And that just irks me greatly.

Actually the TPD appln does not have an onerous burden at all...in most cases...including ODEX's. What ODEX failed to do was to show how their s/w worked...link it to a download...explain why the s/w can track an anime download out of a zillion downloads...explain how the IP address of the downloader is unique...explain how these are leased from PACNET...and use a guy who has the qualifications to say this...and voila! Most lawyers and pretty much everyone did was to treat this like a pure copyright case...'cos on the face of it illegal downloading is just that illegal right? So they assumed the illegality trumped pretty much everything else and failed to see the court procedure side of things...e.g. see Siew Kum Hong's comments pre and post the GD; party status issues; evidence; and application of court rules. Now Earnest Lau merely upheld substantive procedural rights and he did not condone or assist illegal downloads...I cannot see a HC judge overturning the judgement based on the grounds cited...and ODEX cannot adduce new evidence in time...they had the evidence all the time they just did not use it...winning the AP point will get them nowhere at least in this instance...the rest of the hurdles based on the evidence they have are insurmountable...but what they will do is appeal and then give some silly comments that the law has changed...it has not actually...

At the end of the day, BayTSP (and probably other similar companies) are sending DMCA notices which claim that they detected a user uploading and downloading copyrighted files. This is a lie. They didn’t catch the user in the act of downloading. A lying tracker, a peer using peer exchange, hostile web page, or buggy BitTorrent client could all result in a false DMCA notice.

If your ISP forwards a DMCA notice from these guys, point them here. This research suggests that they have no evidence of wrong-doing. If ISPs learn that the folks sending them DMCA notices are not being completely honest, they may be willing to reconsider their position about how they respond to the notices. The people I work with at Carnegie Mellon seemed willing to reevaluate their policies given this evidence. I believe that ISPs should require that any peer-to-peer related DMCA notice include a statement regarding exactly what evidence of sharing was found. Ideally, the notice should contain evidence that could be corroborated with log files (for example, “we found that the client at 123.1.2.3 uploaded 1 MB of file X to 4.3.2.1″. The ISP may be able to check that there was 1 MB of traffic between these two clients).

A piece of good news for anybody who has gotten a bittorrent related notice from BayTSP: it doesn’t seem like a studio could do much in terms of court action with the evidence BayTSP gives them.

For the technically minded, I though I’d share some observations of the behavior of BayTSP’s clients

BayTSP’s clients don’t don’t accept incoming connections, only send outgoing ones. I wonder what exactly this is for.Some of the BayTSP clients claim to be using Azureus (and support Azureus extensions), while others run libtorrent. I’m not sure why they are doing thisWhen BayTSP’s clients connect to a BT user, they claim to not have downloaded any of the file, but refuse uploads. Not only does this behavior not make any sense for an actual user, but it seems like BayTSP would want to accept data, which might provide proof of infringement.Some of the IP ranges I noticed coming from BayTSP were: 154.37.66.xx, 63.216.76.xx, 216.133.221.xx. Sometimes, they make themselves really obvious on the tracker. For example, 154.37.66.xx and 63.216.76.xx will send 10 clients to the same tracker all claiming to listen on port 12320. Maybe trackers should block these folks

Heh you guys should just leave your names, it's hard to respond to all the anonymous commentors.

to first anon: In the order that you raised the questions.1. No. That would just be an evidentiary issue and does not affect the substanitve point of law on the standard of proof required.

2.Based on the grounds given in his decision, only copyright owners or exclusive licensees can do so.

3. No. but this is my personal view. But you just think about it, if they are not the correct party to bring an application or commence a civil action, how can they be the right party to demand settlement and threaten legal action.

to second anon: write a post and mail me the link, looks like you raised a number of good points. As for the starhub one I thought you had some hard evidence like the copied statements on hand.

to third anon: Thanks for the insightful comment on the more technical aspects of the case, I'll edit the post soon to reflect a link to yours.(I presume that's your blog entry.)